David Smith began employment with Scottish Canals, the name under which the British Waterways Board operates in Scotland, in 2005. He was one of eight operatives overseen by a manager, two supervisors and two team leaders. He worked a seven-day rota and was also on standby for seven days one week in every five. During their standby period, workers were not allowed to consume alcohol.

The Employment Tribunal (ET) heard that it was 'not a happy team', having a history of employees raising concerns about health and safety matters and complaining about the way they were treated. Mr Smith had raised a grievance as he felt he was being bullied and harassed by certain members of staff and a mediation meeting had been arranged for 23 May 2013 to discuss the issues. The meeting did not take place, however. Instead, he was told that he was suspended from work pending an investigation into derogatory comments he had made about senior staff members on his Facebook page. These had been copied by one of the supervisors about whom Mr Smith had complained and emailed to the member of the HR department who had been due to conduct the meeting. A further investigation of his Facebook page revealed a comment about being drunk whilst on standby. British Waterways had in place a policy on Internet use which prohibited any action...'which might embarrass or discredit' the company.

A disciplinary hearing was held at which Mr Smith claimed that his Facebook account had been hacked without his knowledge and his 'private' setting switched to 'public', resulting in his remarks being available for public viewing. He denied that he had been drunk whilst on standby. He had an unblemished work record and said that he had merely been 'indulging in banter' and did not intend to offend anyone. Whilst the comments he had made were highly offensive and inflammatory, he argued that Facebook posts are often exaggerated and embellish the truth.

However, the decision to dismiss him was taken on the ground that his actions had destroyed the trust and confidence necessary between employer and employee and amounted to gross misconduct. Mr Smith appealed against this decision but the director hearing the appeal ruled that it should stand. In her view, there was no causal link between his allegations of bullying and the discovery of the comments on Facebook.

Mr Smith brought a claim of unfair dismissal, arguing that dismissal was too harsh a punishment in the circumstances and that it was 'convenient' that he had been dismissed when he had outstanding bullying and harassment grievances against his supervisors. Scottish Canals argued that his actions had breached his position of trust and exposed it to public condemnation.

Whilst satisfied that Scottish Canals had followed a fair procedure when deciding to dismiss Mr Smith, the ET found that it had failed to consider any of the mitigating factors that he had put forward. In its view, the decision to dismiss him fell outside the band of reasonable responses that a reasonable employer might have adopted and the dismissal was therefore unfair.

However, in upholding Scottish Canals' challenge to that decision, the Employment Appeal Tribunal (EAT) found that Mr Smith's dismissal was within the range of reasonable responses. The ET had ruled that the disciplinary procedure followed by the company was not unfair. It would not have done so had it judged that the person making the decision had refused to listen to part of the case. The ET had fallen into the trap of substituting its own views on the gravity of Mr Smith's misconduct for those of his employer. In those circumstances, there was only one possible answer to the issue – that his dismissal was not unfair.

In reaching its decision, the EAT agreed with the judge in Game Retail Limited v Laws that there is no need for special rules in cases involving social media. In that case, the EAT found that the 'reasonable responses' test is 'sufficiently flexible to permit of its application in contexts that cannot have been envisaged when it was laid down. The questions that arise will always be fact-sensitive and that is true in social-media cases as much as others. For us to lay down a list of criteria by way of guidance runs the risk of encouraging a tick-box mentality that is inappropriate in unfair-dismissal cases.'

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